With roughly six weeks remaining in the regular session of this year's Texas Legislature, important reforms at the Texas Medical Board, a scope-of-practice battle with chiropractors, bills to ensure employed physicians maintain clinical autonomy, an overhaul of the way Medicaid pays for physicians and other services, and finalizing a 2012-13 budget are keeping things interesting for lawmakers and the Texas Medical Association.
Exactly how those issues will turn out is still very much uncertain. Political observers will tell you that the end of a legislative session is like a crescendo where either everything comes together with lawmakers passing a budget and key legislation or everything falls apart and they end up in special session later in the year. As of mid-April, it was unclear which scenario would play out, so stay tuned.
TMA's TMB-Reform Package
TMA's bills to reform the Texas Medical Board (TMB) are moving. "We understand many physicians' frustration with the board, and we are behind a package of bills that would improve how TMB handles complaints against physicians without undermining the board's responsibility to protect the public from bad actors," said TMA Executive Vice President and Chief Executive Officer Louis J. Goodman, PhD.
The Senate has passed Senate Bills 190 and 191 by Sen. Jane Nelson (R-Flower Mound). SB 190 would allow physicians to tape the proceedings of a TMB informal settlement conference, which eliminates the truly anonymous complaints. It would provide a physician with notice if an insurance company files a complaint. It would prohibit the granting of a license to an applicant who has had a medical license suspended or revoked by another state or country. SB 191 would bind TMB to the ruling of an administrative law judge in a proceeding supervised by the State Office of Administrative Hearings.
SB 177 by Sen. Joan Huffman (R-Houston) is waiting to be voted out of the Senate Health and Human Services Committee. It requires the board to do all of the above.
SB 227 by Senator Nelson was passed by the Senate Health and Human Services Committee and is now waiting for debate in the full Senate. SB 277 would provide discretion for TMB to waive a fine in lieu of a remedial action plan for a minor administrative violation.
"I've seen lots of e-mails crowing about a small step taken by House Bill 1013, a self-serving piece of legislation designed to remove legitimate oversight from those who practice outside the scientific basis of modern medicine," Dr. Goodman said. "HB 1013 weakens TMB to the point that it would place our 2003 health care tort reforms at risk. If doctors are unable to police themselves through a strong and fair medical board, then today's complaint is tomorrow's lawsuit."
Chiropractic Carte Blanche
A major scope-of-practice battle took front and center in early April when the Senate Business and Commerce Committee approved legislation that essentially would have given the Texas Board of Chiropractic Examiners (TBCE) carte blanche authority to do whatever it wants – by rulemaking – without having to worry about legal action from another state health licensure agency. Working with the bill author, however, TMA was able to remove all of the objectionable provisions.
As approved by the Senate Business and Commerce Committee, SB 1001 by Sen. John Carona (R-Dallas) would have prevented TMB from taking legal action to stop an individual chiropractor from violating the Medical Practice Act if the chiropractic board says the chiropractor is practicing within his or her scope.
The bill also would have circumvented current insurance code provisions concerning nondiscrimination against nonphysicians, which would enable more than 30 nonphysician health care groups to get paid for more services and also would increase utilization. And, lastly, the bill would have allowed those groups to create partnerships and other professional organizations with physicians, circumventing current law that sets out how these organizations are structured.
Under the compromise bill, the measure requires fair payment and nondiscrimination in payment by health plans for services that chiropractors provide. It also allows chiropractors and physicians to establish business relationships as long as the physician affirmatively reports and updates those relationships to TMB.
In an April 14 letter to Senator Corona, TMA Council on Legislation Chair Dan McCoy, MD, thanked him for working with TMA to compromise and said TMA supports the amended bill.
Meanwhile, its House companion bill – House Bill 3441 by Rep. Warren Chisum (R-Pampa) – was heard in the House Licensing and Administrative Procedures Committee in mid-April. TMA testified against that bill, which was left pending in committee.
Compromise legislation that would allow critical access hospitals, sole community hospitals, and hospitals in counties with populations of 50,000 or less to employ physicians directly passed the Senate in early April. Senate Bill 894 by Sen. Robert Duncan (R-Lubbock) resulted from extensive negotiations among TMA, the Texas Organization of Rural & Community Hospitals, and others. The bill contains many features that protect physicians' clinical autonomy, including:
- Placing the responsibility for all clinical matters – bylaws, credentialing, utilization review, and peer review – under the medical staff;
- Guaranteeing physicians' independent medical judgment;
- Ensuring that all physicians – employed or independent – are subject to the same rights and responsibilities;
- Allowing employed physicians to participate in selecting their liability insurance and having the right to consent to settle in a liability action; and
- Requiring the medical staff to designate a chief medical officer (CMO) who must be approved by the hospital board. The CMO has the duty to report to TMB that the hospital is hiring physicians under this bill. The CMO has the duty to report instances of interference to TMB.
Meanwhile, three bills are moving forward to allow hospital districts in Harris County, El Paso County, and Bexar County to directly employ physicians. Under the Harris County and El Paso County bills, the district's medical executive board would supervise all matters related to the practice of medicine by all physicians, employed or not. The board would be made up of physicians and would have sole authority over the rules on credentialing of physicians, peer review, quality assurance, and any other function related to the clinical responsibilities of physicians practicing in district facilities.
The Bexar County bill would use a nonprofit health care corporation (commonly called a 501a), with a physician board of directors, to employ physicians.
The bills resulted from a consensus of their respective county medical societies, hospital districts, and medical schools. TMA officials say the measures are directed at helping the hospital districts meet their statutory requirement to care for indigent populations through employing physicians while maintaining physician supervision and control of clinical matters
TMA also has testified in support of SB 1661 by Senator Duncan, which establishes protections for physicians' clinical autonomy and gives the physician board of directors of nonprofit health care corporations [501(a)s] the responsibility for all policies related to clinical care. It also strengthens TMB's role in supervising the activities of nonprofit health care corporations.
In early April, the House passed a $164.5 billion budget for fiscal 2012-13 that includes a 10-percent cut in physician Medicaid and Children's Health Insurance Program (CHIP) fees, deep cuts in the state's mental and public health safety programs, and reductions in funding for programs designed to recruit and retain physicians.
The Senate has yet to pass its budget bill, but TMA officials say the Senate's bill likely will include $8 billion to $10 billion in additional spending, most of that coming in health and human services and education spending. As the Senate's bill stood in mid-April, the Medicaid physician fee cut would be eliminated. The Senate version also includes funding for Medicaid caseload growth and restores funding for important TMA priorities, including community-based and crisis mental health services and tobacco cessation and prevention programs.
The Senate was expected to vote on its budget bill soon, with the final budget bill to be written in a House-Senate conference committee. That means the fate of funding for Medicaid, graduate medical education, and other health-related programs depends largely on the five senators and five representatives appointed to that conference committee. TMA officials say the makeup of that committee is highly uncertain beyond House Appropriations Committee Chair Jim Pitts (R-Waxahachie) and Senate Finance Committee Chair Steve Ogden (R-Bryan). There is speculation that state Rep. John Zerwas, MD (R-Richmond) is a likely House appointee, which would be a plus for organized medicine. But House Speaker Joe Strauss (R-San Antonio) may have difficulty choosing any Democrats to serve on the conference committee. Traditionally, conference committees include members who voted for the bill from both parties, but no House Democrats voted in favor of the budget bill this time.
Meanwhile, both the House and Senate are looking for ways to come up with additional revenue without a tax increase. Senator Duncan, chair of the Senate Finance Subcommittee on Fiscal Matters, was directed to find $5 billion in additional nontax revenue. Among options for generating additional money that subcommittee is considering are:
- Liquidate the tobacco settlement endowment funds ($590 million);
- Liquidate the permanent public health fund ($379 million); and
- Extend the small business exemption from the franchise tax – an item that costs the state an estimated $150 million.
As lawmakers wrestled with how much Medicaid pays physicians, two bills were moving forward that would change how they are paid by Medicaid, as well as CHIP and private health plans.
SB 7 by Senator Nelson shifts the focus in Medicaid and CHIP away from fee-for-service payments to quality-based payments. The bill establishes a new quality-based payment advisory committee to recommend ways to improve outcomes to the Texas Health and Human Services Commission. Further, the bill would reduce Medicaid and CHIP hospital payments when patients are readmitted for preventable illnesses; establish copayments for unnecessary emergency department visits; provide incentives for hospitals, physicians, and health plans to reduce waste and improve quality of care; and order a study of whether pay-for-performance is workable for long-term care.
SB 8, also by Senator Nelson, establishes a statewide plan for improving quality and increasing efficiency through performance-based measures, tests collaborative models between physicians and health care providers, and requires public reporting of preventable readmissions and complications.
TMA initially had serious concerns about SB 8, but negotiations with the Texas Association of Health Plans and the Texas Hospital Association led to significant changes that protect physicians in collaborative arrangements, including giving physicians an equal say and vote in a collaborative arrangement's governing board and providing due process protections and the ability to participate in more than one collaborative arrangement in their community. The bill also protects Texas' ban on the corporate practice of medicine.
The Senate Health and Human Services Committee approved both bills, and they were pending on the Senate Local and Uncontested Calendar.
TMA-backed legislation to ban smoking in public places statewide cleared the House Public Health Committee, but the House Calendars Committee has not yet set it for debate. The Senate version of the bill also has cleared committee, but supporters say they lack the 21 votes they need to bring it up for Senate consideration.
TMA is working with both bill authors on potential amendments to help them gain the necessary votes to bring up the measure for Senate consideration. Under Senate rules, a two-thirds vote is required to consider a bill out of its regular order of business. Traditionally, the Senate places a bill at the top of its calendar at the beginning of a day's session and leaves it there, thereby forcing all other legislation to gain a two-thirds majority to reach the floor.
And on an issue involving end-of-life care, TMA was set to testify in mid-April against legislation that requires physicians to continue providing treatment they believe to be unethical and inappropriate. HB 3520 by Rep. Bryan Hughes (R-Mineola) mandates that treatments such as artificial nutrition and hydration not be withheld, even if the hydration harms the patient, as in the case of an already fluid-overloaded patient with kidney failure or heart failure who can't go on dialysis. If passed, this bill could lead to prolonged suffering and, in some cases, accelerated death of patients.
TMA officials say it also would subvert processes set up under the Texas Advance Directives Act for resolving end-of-life care issues, would interfere with the patient-physician relationship, and potentially prolong the suffering of some patients.
Texas Medicine Senior Editor Ken Ortolon prepared this special supplement to Action.
Action, April 15, 2011